Nursing home case–elder abuse remedy is only available upon evidence of despicable conduct and knowledge of serious danger . . .

In Carter v. Prime Healthcare Paradise Valley, LLC (California Court of Appeal, Fourth Appellate District, August 12, 2011, No. D057852) the Court affirmed the trial court’s dismissal of the complaint without leave to amend following defendants’ demurrer. The primary issue was whether plaintiffs sufficiently pleaded a claim of physical elder abuse against the nursing home defendants arising from the death of plaintiffs’ father.

This is an important case for plaintiffs and defendants to review in circumstances involving alleged nursing home physical elder abuse. Essentially, to plead a claim of medical care physical elder abuse in the nursing home context plaintiffs must plead facts evidencing neglect or the withholding or denial of care or treatment. Neglect includes, but is not limited to, all of the following: (1) Failure to assist in personal hygiene, or in the provision of food, clothing, or shelter; (2) Failure to provide medical care for physical and mental health needs; (3) Failure to protect from health and safety hazards; or (4) Failure to prevent malnutrition or dehydration. Plaintiffs must plead specific facts, not general allegations, evidencing oppression, fraud, or malice involving intentional, willful, conscious or reckless wrongdoing of a despicable or injurious nature. Recklessness involves deliberate disregard of the high degree of probability that an injury will occur and rises to the level of a conscious choice of a course of action with knowledge of the serious danger to others involved in it.

This has been a developing area of law. The court in Carter briefly references factual background and holdings in preceding cases. The court held that elder abuse remedies are only available for the egregious withholding of medical care for physical or mental needs—factual allegations that do not rise above a level indicating only ordinary medical care negligence will not suffice. For example, even at the pleading stage factual allegations indicating the occurrence of a bedsore without more are not sufficient to survive a demurrer on a claim of elder abuse. The holding in Carter is helpful to defendant nursing homes, and is a difficult case for plaintiffs.